Opinion
October 5, 1998
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the plaintiffs' motion for summary judgment declaring their right to the north-south easement is granted, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings in accordance herewith, and entry of an appropriate judgment declaring the rights of the parties.
Contrary to the trial court's determination, the evidence does not support a finding that the easement in the north-south right-of-way was abandoned by the plaintiffs or their predecessors. As stated by the Court of Appeals, in Gerbig v. Zumpano ( 7 N.Y.2d 327, 331), "It is clear that nonuser alone, no matter how long continued, can never in and of itself extinguish an easement created by grant ( Welsh v. Taylor, 134 N.Y. 450; 3 Powell, Real Property, par. 423, p. 491; Walsh, The Law of Property [2d ed], § 305). In order to prove abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement". Furthermore, acts evincing an intention to abandon must be unequivocal. They must clearly demonstrate the permanent relinquishment of all right to the easement ( see, Welsh v. Taylor, supra).
Here, the evidence of nonuse, coupled with the failure to act, on the part of the plaintiffs and their predecessors, prior to the instant action, does not establish abandonment ( see, De Jong v. Abphill Assocs., 121 A.D.2d 678, 680; Castle Assocs. v. Schwartz, 63 A.D.2d 481). The construction of obstructions on the easement at issue was merely "evidence of non-user and nothing more" ( Welsh v. Taylor, supra, at 459).
Likewise, the plaintiffs' easement in the north-south right-of-way was not extinguished by adverse possession. A "paper" easement, not located and developed through use, may not be extinguished by adverse possession absent a demand by the owner of the easement that the easement be opened, and a refusal by the party in adverse possession ( see, Spiegel v. Ferraro, 73 N.Y.2d 622, 626; Conway v. Hahn, 208 A.D.2d 492, 493; Castle Assocs. v. Schwartz, supra, at 490). Because the plaintiffs first demanded that the north-south right-of-way be opened in May of 1992, the defendants' possession has not been adverse for the requisite 10-year period ( see, Spiegel v. Ferraro, supra, at 625; Conway v. Hahn, supra, at 493; Castle Assocs. v. Schwartz, supra). Therefore, the defendants' claim to unfettered ownership of the north-south right-of-way under the doctrine of adverse possession must be rejected ( see, Del Fuoco v. Mikalunas, 118 A.D.2d 980, 981-982).
Accordingly, the plaintiffs are entitled to a declaration that they have an easement in the north-south right-of-way, as recorded on Map 32, entitled "Estate of Judge John Garrison", filed November 17, 1868, in the Putnam County Clerk's Office. However, on the record before us, in the absence of a land survey, there can be no determination as to where on the property the easement lies, and what, if any, obstructions exist on the easement. Therefore, the matter must be remitted to the Supreme Court for a determination of this issue and the plaintiffs' application for a permanent injunction.
The defendants' remaining contentions are without merit.
Copertino, J. P., Pizzuto, Friedmann and McGinity, JJ., concur.